CHICAGO — A state appeals panel said a Cook County judge was wrong to deny legal fees to the ACLU and Jenner & Block attorneys who represented people suing the state over permission to change the gender on their birth certificates.
The Cook County judge had denied the fee request, in part, because it would be a "gift" to the ACLU at taxpayers' expense.
Three people who successfully challenged the way the State Registrar applied the Vital Records Act did so with pro bono representation from Jenner & Block lawyers, as well as the ACLU’s Roger Baldwin Foundation. Cook County Judge Peter Flynn denied the plaintiffs’ request to award fees, prompting the appeal that argues the fees were mandatory and historically supported as appropriate.
The Illinois First District Appellate Court ruled on the matter in an order issued May 12. Justice James Fitzgerald Smith wrote the court's order; Justices Aurelia Pucinski and Mary Ellen Coghlan concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.
According to the panel, the plaintiffs sought compensation for legal expenses under the Illinois Civil Rights Act, which authorizes the awarding of such money to prevailing parties. They further said Jenner & Block pledged any award it received to the Baldwin Foundation. Although the Registrar agreed the Civil Rights Act applied, it argued the fee award was either barred by sovereign immunity or that the fees sought were excessive.
Flynn did allow the plaintiffs to recover $6,168 for costs and expenses, but denied attorney fees. Although he didn’t find the State Registrar immune, he did agree the fee request was excessive, and said if fees were awarded, they should be reduced. Hours spent on the petition seeking the fee award should be lowered by 20 percent and the request for bono representation should be reduced by half “across the board,” according to Smith’s opinion.
Further, Flynn said Jenner & Block’s commitment to give any fees to the Baldwin Foundation effectively meant plaintiffs sought to “charge the taxpayers for a gift, in the amount of the legal fees plaintiffs did not incur, to recipients plaintiffs’ counsel will select.”
On appeal, the panel allowed the Association of Pro Bono Counsel and Chicago Bar Foundation to file briefs in support of the fee award. The Registrar filed a brief to state it took no position on the appeal.
The law under which the plaintiffs appealed stipulates “a court shall award reasonable attorneys’ fees to a plaintiff who is a prevailing party” in such litigation, Fitzgerald Smith wrote. The word “shall,” he added, is taken “to mean that an award of fees is mandatory unless some further qualification is included in the statute.”
The panel said other state laws have similar clauses for mandatory fee awards, such as the Illinois Condominium Property Act. Others such as the Residential Real Property Disclosure Act link awards to fees actually incurred. Fitzgerald Smith wrote there is nothing in the Civil Rights Act indicating lawmakers “intended anything other than that a circuit court is required to award reasonable attorney fees to a plaintiff who qualifies as a prevailing party.”
Fitzgerald Smith also explored the notion of “reasonable attorneys’ fees” and said since courts are allowed to calculate awards based on prevailing market rates, regardless of how much a lawyer charges, there is nothing preventing a judge from determining reasonable fees under a pro bono agreement.
Beyond the state law, the panel pointed to Title VI of the federal Civil Rights Act. Fitzgerald Smith said state lawmakers in 2003 used the 1964 federal law as a model, by which time it “was well-established” that fees could be awarded for pro bono representation.
The panel reversed the portion of Flynn’s order denying the fees and sent the case back to Cook County court so fees could be determined.